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Home » Treatises » The Anatomy of a Civil Case
I. INTRODUCTION
This chapter will cover the basic elements of a typical civil case. As a point of departure, it is important to understand that there are two types of legal cases: civil and criminal. Criminal cases involve offenses against the state; i.e., violations of state or federal laws. Criminal cases are always prosecuted by the government and carry the potential of criminal penalties, including jail and criminal fines. For example, the State of Utah might charge the C.E.O. of a start-up company with securities fraud and then, upon conviction, require the C.E.O. to pay a fine and serve time in jail.
Conversely, civil cases involve wrongs by one or more persons or organizations against one or more persons or organizations. For example, a company might sue another company for failing to abide by the terms of their business contract. Notably, even the government could file a civil case against a citizen or organization. But remember, civil cases do not carry criminal penalties. Rather, the goal of a civil case is to determine if any remedy is owed to the party bringing the case. These remedies involve either monetary awards or court orders requiring or forbidding certain behavior by the non-prevailing party. For example, in a law suit for patent infringement, a company might sue a patent violator for the profits the violator acquired from the violation, as well as a court order forbidding the violator from continuing to engage in its infringing behavior.
A. All civil cases follow the same rules, except for Small Claims cases.
Civil cases are governed by statutes and case law. Statutes are the laws that the legislature has enacted. Statutes can, among other things, create legal duties and limit or preclude the remedies a court can award. Case law refers to the body of previous court cases that either interpret statutes or develop judicial law.
Additionally, the court has adopted rules that govern civil cases procedurally. There are two sets of civil procedural rules: those for small claims and those for all other claims. Small claims courts only hear cases where the amount in controversy in less than a certain dollar amount prescribed by statute, currently set at $10,000. See Utah Code § 78A-8-
102. Small claims cases follow a simplified set of court rules known as the Utah Rules of Small Claims Procedure. All other civil cases at the trial level follow the Utah Rules of Civil Procedure (“URCP”). Each step of civil case is governed by a corresponding rule in the URCP. This chapter will summarize some of the content of some of the rules, but should not be considered a substitute for referencing the rules themselves or seeking competent legal counsel.
Not all civil cases will have each of the elements we will discuss. No two civil cases involve the exact same set of facts, and consequently, each case tends to develop uniquely. This chapter focuses on the possible procedural paths a typical, non-small-claims case can take. Although not all civil cases will necessarily have each of the elements described in the balance of this chapter, understanding the overall anatomy of a civil case is critical to making informed decisions about business litigation.
II. THE BEGINNING OF A CIVIL CASE
A. Timing
The URCP sets out deadlines for most actions that a party can take in the course of litigation. Rule 6 clarifies how each time period is
24 Utah Business Law for Entrepreneurs and Managers
to be accounted for and what standard applies to a party that is seeking additional time. The rule is not complicated, though it is detailed, so a careful, informed reading of the rule will likely be the best way to understand it. The important principle to understand is that failure to meet a deadline can have serious, detrimental effects on your case. In most cases, the party seeking to take an action after the prescribed time period will have to show good cause and/or lack of prejudice to the other party in order to have its mistake excused. This is a difficult standard to meet. It is much easier to plan ahead and file/serve documents in a timely matter than to seek for retroactive leniency from the Court that may or may not be granted.
B. The Complaint
A civil case begins in one of two ways: (1) the filing of complaint with the court, or (2) the delivery of copy of a complaint and a summons to the party against whom a claim is being made. URCP 3. The person making the complaint is the “plaintiff.” The person against whom the complaint is filed is the “defendant.” The complaint sets forth who the parties are, the basis for the claim, and why the court has jurisdiction (i.e., authority to hear the case).
C. Summons and Service
If a complaint has been filed with the court, a copy of it must be delivered to the defendant along with a summons; i.e., a written order from the court requiring the defendant to answer the complaint by a certain date. URCP 4(b)(i), (c)(1). If the complaint was originally delivered to the defendant, then the complaint, the summons, as well as proof of delivery must be filed with the court within ten days of the service.
The method by which the summons and the complaint are delivered to the defendant is referred to as “service,” while the actual documents themselves are referred to as “process.” URCP 4 dictates how and when service can be accomplished as follows:
• When does service have to be done by? Process must be served on defendant within 120 days of filing the process with the court. Conversely, if the plaintiff elects to serve the defendant
The Anatomy of a Civil Case
before filing with the court, the defendant must file a copy of the process with the court within ten days of serving the defendant. Failure to meet these deadlines results in dismissal of the case. URCP 4(b)(i); URCP 3(a).
• What types of service are allowed? Unless there is special court order, service can only be accomplished by mail or in person. URCP 4(2)(A). Personal service has a few specific rules:
– Personal service can be performed by any person eighteen years of age or older at the time of service who is not a party to the action or a party’s attorney. With a few exceptions, service can be made by delivering process to the defendant personally, to some person of suitable age and discretion residing at the defendant’s house or usual place of abode, or to the defendant’s duly authorized agent. URCP 4(d)(1).
Notably, special rules govern service of process if the defendant is a corporation, partnership, or unincorporated association which is subject to suit. Generally, service can be performed in such cases by delivering process to “a managing or general agent, or other agent authorized by appointment or law to receive service of process . . . .” URCP 4(d)(1)(E).
– Service by mail can be accomplished in one of two ways: (1) mailing the process and having the defendant sign a document indicating receipt, or (2) requesting the defendant to waive service of the summons. In the later situation, the plaintiff must mail a copy of the complaint to the defendant with a request to waive service of a summons. For domestic mail, the court request must allow the defendant at least twenty days after sending the request to return the waiver. If the waiver is properly returned, the defendant is allowed extra time to respond to the complaint (forty-five days). If the defendant refuses the waiver request, the court will require the defendant to pay the costs subsequently incurred to effectuate personal service. URCP 4(d)(2), (f).
– Special court orders can permit service by other means, such as publication, in unique circumstances. URCP 4(d)(4)(B).
D. Default Judgment
1. URCP Rule 55
Once a complaint and summons have been properly served, the party on whom they have been served (i.e., the defendant) must make a proper response in order to avoid default judgment.2 Default judgment means that the court is awarding the plaintiff the relief she requested in her complaint, even though there has not been a trial. In other words, the plaintiff is deemed to have won the law suit.
2. Motion and order in supplemental proceedings A motion an order in a supplemental proceeding is a way for a judgment creditor to find out how the defendant will pay the judgment.
3. Order to show cause
If a judgment debtor does not appear for the supplemental proceeding, the plaintiff can as for an order to show cause.
4. Bench warrant
Failure to appear to show cause and/or repeated failure to abide by another court order can result in the judge issuing an arrest warrant for that person. These warrants, known as bench warrants, authorize law enforcement to arrest the person on sight. The person is then brought before the judge—i.e., before the judge’s bench—to explain why she is failing to abide by the court’s orders.
5. Garnishment
A writ of garnishment is a court order authorizing the seizure of a defendant’s property that is in control of someone other than the defendant. Importantly, writs are available when the defendant is indebted to the plaintiff. A court can issue a writ either before or after final judgment has been entered. URCP 64D(a).
E. Possible Responses to the Complaint
In lieu of filing an answer to a complaint, a defendant may file a motion to dismiss or a motion for a more definite statement. A defendant can also file a petition to remove the case to federal court. Each of these options can have a different effect, and each is only appropriate in certain circumstances.
1. The Answer
Although other responses are possible, the most common response to a complaint is an answer. An answer, just as its name implies, responds to the complaint, usually by denying or admitting the allegations in the complaint and raising affirmative defenses. URCP Rule 8. Under most circumstances, the answer must be served within twenty days of the service of the complaint. URCP 12(a). An answer can also include a counterclaim, cross-claim, third-party complaint, or jury demand. URCP 12.
a. Counterclaim
A counterclaim is a claim for relief that the defendant has against the plaintiff. There are two types of counterclaims: compulsory and permissive. Generally, compulsory counterclaims are, as their name implies, claims that must be made when a defendant is answering a plaintiff’s complaint. URCP 13(a). Failure to properly raise the claim precludes the party from raising it at a future proceeding.
Conversely, permissive claims can be made in the same proceeding, but are not waived if they are not raised. The difference between the two is that compulsory claims arise out of the same “transaction and occurrence” as the defendant’s complaint, all other counterclaims are permissive. URCP 13 (a), (b). For example, in a breach of contract complaint filed by a plaintiff against a defendant, the defendant might answer by including a counterclaim for tortious interference with a business relationship or breach of the covenant of good faith and fair dealing. If the plaintiff’s breach of contract claim was based on the same event as the defendant’s breach of the covenant of good faith and fair dealing, then the defendant’s claim would be compulsory. Conversely, it is likely that the toritous interference with a business relationship claim would be permissive if it referred to plaintiff’s unrelated actions.
b. Cross-Claim
Some cases will have multiple defendants or multiple plaintiffs. When this occurs, there is potential for these co-parties to have legal claims against each other. These claims are cross-claims; i.e., a claim by a defendant against another defendant or a plaintiff against another plaintiff. Cross-claims must arise out of either the same transaction or occurrence or relate to property that is the subject-matter of the original complaint. URCP 13 (f).
c. Third-Party Complaint
A third-party complaint is a claim brought against a party that was not initially included in the action. Either party can make a third party complaint, though plaintiffs can only do so for purposes of a counterclaim. These types of complaints are made when one of the original parties to the action alleges that someone who is not a party to the lawsuit is at least partially responsible for paying the claim (or counterclaim) being brought against them. For example, if a homeowner was suing his general contractor for breach of contract for faulty work, the general contractor could bring in the subcontractor who did the work as a third-party defendant. See URCP 14.
d. Jury Demand
With some exceptions, civil cases can either be decided by a jury or judge. Either party may demand a jury trial, but must do so in writing to the court within ten days after service of the last pleading—e.g., the complaint or answer—and must serve this demand on the other party. URCP 38(b). Failure to abide by these conditions waives the right to trial by jury. URCP 38(d). Consequently, it is important to consider the merits of a jury trial before filing a complaint.
2. Motion to Dismiss
A motion3 to dismiss is a request asking the court to dismiss the case. This request, depending on the claim and the circumstances, can be with or without prejudice. The difference is that dismissing a claim with prejudice will preclude the plaintiff from ever filing a complaint arising from the same transaction/occurrence and involving the same claim and defendant again. Conversely, dismissing a claim without prejudice will dispose of the current action but leave the plaintiff the option of correcting the deficiency in the original complaint and refiling it with the court at a later date. URCP 12(b) covers some of the basic motions to dismiss as set forth below that a defendant might make in response to a defendant’s complaint.
a. Lack of subject matter or personal jurisdiction Courts don’t have unlimited authority: they can only decide cases that they are authorized to hear. This authority is referred to as jurisdiction. In order to hear a case the court must have the authority over the people involved in a case (i.e., personal jurisdiction) and authority to hear the subject of the litigation (i.e., subject matter jurisdiction). Subject matter jurisdiction is generally determined by statute or constitution, and is a less common objection in Utah because district courts here have very broad authority to hear different types of cases. However, one example of where this authority has been limited is that small claims courts are not authorized to hear matters involving sums greater than $10,000. Motions to dismiss for lack of personal jurisdiction generally only arise if the one of the defendants is not a resident of the state. In these cases, the court must look at the defendant’s connections to the state to see if they are legally sufficient to justify exercising authority over her.
b. Improper venue
Improper venue motions to dismiss arise when the defendant concedes that a Utah court has subject matter and personal jurisdiction, but argues that the specific Utah court in which the case was filed is not is not the appropriate place to try the case. This claim could be based on a contractual provision between the parties that requires disagreements between the parties to be heard by a certain court or on arguments that another court (i.e., another forum) is the more convenient and logical place to have the case heard.
c. Insufficiency of process or service of process These motions are made when a defendant alleges that the plaintiff has failed to follow the URCP regarding the form of the pleading; i.e., the process. Contrastingly, motions based on insufficiency of service of process allege the URCP were not met in the way the process was delivered—i.e., served. For example, if the plaintiff never served the defendant with the complaint, then a court could dismiss a case for insufficiency of service.
d. Failure to state a claim upon which relief can be granted
The law only recognizes certain types of complaints that a plaintiff can bring against a defendant. Additionally, URCP 8(a) requires that all complaints lay out the basic facts that show they are entitled to relief. Thus, if a complaint fails to set out legally cognizable complaint it can be dismissed.
e. Failure to join an indispensable party Some claims involve the rights of more than just the parties in the original action; i.e., the party or parties that were included in the original pleading. If a nonparty’s rights are implicated to a high enough degree, then the law requires that she be made a party to the action so that her rights aren’t affected without her having a chance to be represented. Failure to join such a party can result in dismissal.
3. Motion for more definite statement, URCP Rule 12(e) and Rule 7
The party submitting a pleading to the court has an obligation to communicate clearly. If the pleading is overly vague or ambiguous, the opposing party can move for a definite statement; i.e., ask that the court require the submitting party to clarify what they are stating in their pleading. Once the motion has been granted, the drafting party has ten days to clarify its pleading, otherwise, it may be dismissed.
4. Removal Petition
In the United States there are two general court classifications: federal and state. Federal courts are, of course, run by the federal government, and likewise, state courts are run by their respective state. Whereas state district courts are courts of general jurisdiction,—i.e., they can hear almost all types of cases—federal courts have much more limited jurisdiction—i.e., they only hear cases that involve certain types of claims or certain types of people. Notably, there is some overlap between the jurisdiction of state and federal courts. In these cases, if a defendant timely requests it, federal courts have authority to take a case that was filed in a state court and instead hear it in federal court. The legal term for this is “removal.”
a. Rule 81(c), Federal Rules of Civil Procedure. This rule states that cases that are removed to federal district court are governed by the Federal Rules of Civil Procedure, and that certain timelines apply for responding to pleadings and motions.
b. 28 United States Code § 1446
This is the federal law that governs the procedures that must be followed to have a case removed from state to federal court. In general, only a defendant can remove a state case to federal court and must do so within thirty days after receiving notice that there is a claim filed in state court that is removable to federal court. This is accomplished by filing a notice of removal in the appropriate federal court.
5. Motion for judgment on the pleadings, Rule 12 (c) and Rule 7, URCP
Once all of the pleadings have been completed, a plaintiff may move for judgment on the pleadings. This motion essentially asks the court to look at the pleadings—i.e., the answer and the complaint—, and only the pleadings, and determine if, assuming everything stated therein is true, the plaintiff is entitled to any relief. This type of judgment is typically brought by a plaintiff when a defendant’s answer fails to deny the allegations set forth in the plaintiff’s complaint. In other words, if the plaintiff has properly plead her complaint, and the defendant admits to everything alleged in the complaint, there is no need for a trial. The judge can look at the pleadings and grant judgment for the plaintiff.
III. DISCOVERY
A. Obtaining information from parties and individuals with knowledge
Once the initial pleading are complete, parties begin the process of obtaining information relevant to the case from the opposing party. This process is referred to as “discovery.” There are a number of different ways to request and receive relevant information, many of which have specific deadlines. These are discussed in the following.
B. Interrogatories, Rule 33, URCP
Parties can submit written questions—interrogatories—to any other party to the lawsuit during the discovery period. The number of questions allowed is set by court rule and changes depending on the amount of damages claimed. Once a party has received an interrogatory, it has twenty-eight days to respond to it under oath or affirmation.
C. Request for Production of Documents, Rule 34, URCP A party may serve written request on another party to the lawsuit to produce documents and other tangible things that are relevant to a lawsuit. The party receiving such a request has twenty-eight days in which to respond to the request. The number of requests allowed is generally determined by the amount of damages claimed.
D. Request for Admissions, Rule 36, URCP
“A party may serve upon any other party a written request to admit the truth of any discoverable matter set forth in the request, including the genuineness of any document.” URCP 36(a). The party receiving such a request has twenty-eight days in which to respond to the request.
The number of requests allowed is generally determined by the amount of damages claimed.
E. Physical and mental examinations, Rule 35, URCP When the mental or physical condition or attribute of a party or someone in the custody or control of a party is relevant and in controversy, the opposing party may ask the court to order that person to submit to a physical or mental examination by a qualified professional.
F. Depositions, Rules 30–32, URCP
Depositions are the process whereby a witness’s testimony is taken, under oath, before trial. Typically, and much like traditional questioning at trial, attorneys are present at depositions and ask questions and make objections. The testimony is then recorded and transcribed, and it can, under some circumstances, be used at trial as evidence. The number of depositions allowed is determined by court rule and is a function of the amount of damages sought. There are a number of rules governing the process and scope of depositions. A few of them are summarized below.
1. Reasonable notice
“The party deposing a witness shall give reasonable notice in writing to every other party. The notice shall state the date, time and place of for the deposition and the name and address of each witness.” URCP 30(b) (1).
2. Can request that documents be brought to deposition “The notice to a party witness may be accompanied by a request under Rule 34 for the production of documents and tangible things at the deposition.” URCP 30(b)(4).
3. Subpoena, Rule 45, URCP
A person who is a party to the case is required to make herself available for deposition testimony without any order of the court. However, a person who is not a party to a case cannot be compelled to be deposed without being served with a subpoena as set forth in URCP
45. A subpoena is a written order from the court requiring the named individual to appear at a certain time and place to be deposed.
G. Disclosures under Rule 26
The discovery tools discussed above require a party to request information before it is produced. However, under URCP 26, there is a significant amount of information that a party is required to produce without waiting for a request. Specifically, each party must provide, to the other parties to the lawsuit, among other things:
1. “the name and, if known, the address of and telephone number of:”
a. “each individual likely to have discoverable information supporting its claims or defenses . . .” and
b. “each fact witness the party may call in its case-in chief . . . ”; and
2. “a copy of all documents, data compilations, electronically stored information, and tangible things in possession or control of the party that the party may offer in its case-in-chief . . . .”
URCP 26(a)(1)(A)–(B). Plaintiffs must make these required disclosures within “14 days after service of he first answer to the complaint.” Defendants must make required disclosures within “28 days after the plaintiff’s first disclosure or after that defendant’s appearance, whichever is later.” URCP 26 (a)(2).
IV. DISCOVERY MOTIONS
A. Rule 37and Rule 7, URCP
When a party fails to follow the discovery rules, there are a number of sanctions a court can impose against it. These are set forth in URCP 37 and include excluding evidence, ordering a party to pay another party’s attorney fees, and rendering default judgment in favor of one party. Sanctions are usually preceded by a motion to compel and a motion for sanctions.
B. Motion to Compel
When an opposing party fails follow discovery rules the other party usually makes a motion to compel the party to follow the rules; i.e., they ask the court to order the party to comply with discovery rules.
C. Motion for Sanctions
After a party has failed to comply with discovery order and rule, or in some cases, just a discovery rule, the party alleging noncompliance can make a motion for the court to impose sanctions.
V. PRETRIAL CONFERENCES, SCHEDULING AND MANAGEMENT CONFERENCES AND ORDERS
A. Default Discovery Deadlines and Other Requirements Rule 26 creates standardized, default deadlines for discovery based on the amount and type of damages sought. The idea behind this is that parties should need to perform less discovery, and therefore need less time to complete discovery, when the amount in controversy is lower. Rule 26 creates three “tiers” of cases, each of which has limitations on how much discovery can be performed and when. Tier 1 covers cases where the amount sought is less than $50,000. Tier 2 covers cases where the amount sought is more than $50,000 but less than $300,000, or non monetary relief is sought (e.g., a request for an injunction prohibiting a business for infringing on a patent). Finally, Tier 3 covers cases where the amount in controversy is in excess of $300,000. The parties are required to follow the deadlines and requirements of the tier under which their case falls unless they agree to modify them or, in special circumstances, the court grants an exception. See URCP 29.
B. Pretrial Conferences
Occasionally, it will be necessary or useful for parties to have a special meeting with the judge before trial in order to expedite the disposition of the case, discourage wasteful activities, extend discovery deadlines, improve the quality of the trial, etc. In such cases, the court can, in its own discretion or on a motion by one of the parties, order the parties to appear before the court to resolve the issue. These are referred to generally as pretrial conferences. URCP Rule 16.
C. Final Pretrial/Settlement Conference
“The court, in its discretion or upon motion, may direct the attorneys and, when appropriate, the parties to appear for such purposes as settlement and trial management. The conference shall be shall be held as close to the time of trial as reasonable under the circumstances.” URCP 16(c).
VI. POST-DISCOVERY MATTERS
A. Settlement
Parties often make offers to settle a claim before it goes all the way to trial. Settling a claim means that the plaintiff agrees to dismiss its claim against the defendant, usually in exchange for something of value from the defendant. For example, in a negligence action arising out of car accident, the injured plaintiff might agree to drop its claim against the driver-defendant in exchange for having the defendant agree to pay all of plaintiff’s accident-related medical bills.
Settling a case is often in the best interest of both parties because it shortens the length of the litigation and in so doing reduces attorney bills and the time and stress spent waiting for the final resolution of claim. There are a number of tools that parties can use to facilitate a settlement of the issues, including an offer of judgment, mediation, and arbitration.
B. Offer of Judgment, Rule 68, URCP
The URCP has a special provision that encourages parties to settle cases before trial if a reasonable settlement offer is made. Namely, Rule 68 authorizes, under certain circumstances, a party that has had a settlement offer rejected to collect its court costs—though not attorney fees—from the rejecting party. There are, however, some limitations on when and how much of such costs can be recovered. Assuming it otherwise follows the procedures of Rule 68, an offering party can only collect its costs if the amount awarded at trial to the rejecting party is less than the amount offered by the offering party. Furthermore, the party can only collect its costs from the date of the offer through the end of trial. However, as an additional incentive to accept reasonable settlement offers, the offering party is relieved from the obligation to pay the court costs and/or attorney fees—if awarded by the court—of the rejecting party from the offer date as well.
C. Mediation & Arbitration
Mediation and arbitration both involve inviting a neutral third party to help settle a case. Although mediation and arbitration can be required by law, they are usually not mandatory unless provided for by contract. E.g., many business contracts include provisions requiring arbitration or mediation in lieu of litigation or as a prerequisite to litigation. Additionally, some parties in litigation elect to go through mediation or arbitration as a means of expediting settlement of the case.
Mediation. Mediation involves inviting a third-party to listen to both sides of a case, and then facilitate a settlement by building bridges of understanding between the parties. Thus a mediator doesn’t actually decide a case. Rather, a mediator tries to help the parties settle the case themselves by clarifying their positions, thinking through alternatives, and discussing possible outcomes if the case goes to trial. Mediation can be, but traditionally is not, binding on the parties. Meaning, the parties are not obligated to follow any advice the mediator gives or reach an agreement after the mediation session. Whether mediation is binding or not is function of the governing law or contract, if either is applicable. The cost of mediator is usually split between the parties.
Arbitration. Arbitration involves inviting one or more third-parties to judge a case. In other words, arbitration is essentially a trial conducted by non-judge. Typically, the arbiter(s) will be agreed on by the parties. Both parties will present their evidence and arguments, and the arbiter(s) will decide the case just as a judge or jury would. Arbitration usually is, but need not be, binding on the parties. Just like mediation, this is a function of what the governing law or contract states, if anything. If arbitration is binding, then the decision of the arbiter(s) will be mandatory, just as if it were issued by a court. The cost of arbitration is usually split between the parties.
D. Motion for Summary Judgment
1. Different from Motions to Dismiss and for Judgment on Pleadings
After discovery, but before trial, either party can file for a motion for summary judgment. In order to understand the role of motion for summary judgment, it is useful to understand the purpose of a trial. The purpose of a trial is to let the fact finder, the jury in a jury trial and the judge in a bench trial, to decide what actually happened as a factual matter. For example, in most cases, the parties disagree about things such as whether money was paid, whether certain representations were made, or who was agreed to in a contract. The parties then present evidence, in the form of exhibits and questions to witnesses to convince the jury (or judge) of their version of what happened. Once the facts are determined, the judge’s role in a jury or bench trial is to apply the law to the facts. The judge doesn’t need witnesses or other evidence to decide how to apply the law to the facts. Consequently, if the parties can agree as to what happened, then there is no need for trial.
A motion for summary judgment is similar to motions for judgment on the pleadings or motions to dismiss in that it essentially argues that the parties agree to the facts—i.e., what happened—and all that remains is for the judge to apply the law to the uncontroverted facts. It is different in that requires the nonmoving party to present some form of admissible evidence—i.e., affidavits, depositions, answers to interrogatories, etc.— reasonably supporting every element of their claim(s). Consequently, the judge will not weigh the credibility of the submitted evidence. Rather, the judge will review the submitted evidence to see if there is anything to support all of the necessary elements of a party’s claims. If a party fails to present evidence on any element of a claim, that claim will be dismissed with prejudice. Conversely, if there is some form of evidence, then the claim(s) can proceed to trial.
Notably, summary judgment can be brought, granted, or denied on multiple claims in a case. It is common for an initial complaint to be very broad: i.e., it will make many claims that may not all be supported by the evidence. Then, as the discovery process proceeds and parties come to understand better what evidence is actually available to support their claims, they will often use motions for summary judgment to pare down the claims before trial.
2. Rule 56 and Rule 7, URCP
Rules 56 and 7 govern the procedures that must be followed when submitting a motion for summary judgment.
A party submitting motion for summary judgment is required to “contain a statement of material facts as to which the moving party contends that no [genuine disagreement between the parties] exists. Each fact [is required to] be separately stated and . . . supported by citation to relevant materials, such as affidavits or discovery materials.” URCP 7(c)(3)(A). The opposing party’s responsive memorandum must “contain a verbatim restatement of each of the moving party’s facts that is controverted, and may contain a separate statement of additional facts in dispute. For each of the . . . facts that is controverted, the opposing party shall provide an explanation of the grounds for any dispute, supported by citation to relevant materials . . . .” URCP 7(c)(3)(B).
There are time limits imposed by the rule. In most cases, a motion for summary judgment cannot be served until twenty days after the commencement of the action. URCP 56(a). Additionally, after a motion has been served, the opposing party has ten days after service to file a memorandum in opposition. The moving party then has five days to file a reply to the memorandum in opposition,
As noted earlier, motions for summary judgment are not typically filed until after discovery has begun to some extent. This allows the parties to better ascertain what kind of evidence exists. Thus, under Rule 56(f) the Court can “refuse the application for summary judgment or may order a continuance to permit” additional evidence to be obtained.
3. Request to Submit
A court will not consider a motion for summary judgment, or any other motion, until one of the parties has notified the Court. The method for notifying the Court is filing a request to submit. A request to submit may not be filed until briefing is completed. Briefing is considered completed when either (1) both parties have prepared and served all of the pertinent memoranda the URCP authorizes for the particular motion, or (2) when the URCP time period for filing the pertinent, authorized memoranda has run out.
VII. FINAL PRETRIAL CONFERENCE
A. Parties and Attorneys present
Although not necessarily required under the URCP, courts often hold a final pretrial conference shortly before a scheduled trial. The general goal of these conferences is to discuss and decide any issues that will help the trial go smoothly and fairly. Although the purpose of this conference can vary, the following topics are often discussed. See URCP 16.
1. Settlement
Courts will often encourage the parties to consider settling the matter before trial. Thus, at a final pretrial conference, the Court might inquire as to what settlement efforts the parties have undertaken and if any aspects of the case have been or likely will be settled. Even if a global resolution cannot be reached, it is often advantageous for the parties to narrow the number of issues that are contested at trial. Doing this can avoid trial-related expenses and, in certain circumstances, aid the trier of fact by simplifying the issues to be decided.
2. Jury Instructions or Findings of Fact/Conclusions of Law
The Court will often discuss jury instructions and make evidentiary rulings. Jury instructions are the direction the court gives the jury regarding how jury members must behave during trial, the criteria upon which they must base their decision, and the best way they can reach their verdict. See URCP 51. For example, every jury trial has instructions relating to the elements the plaintiff must prove in order to recover.
Evidentiary rulings govern what evidence can be presented to the jury and the manner in which it must be presented. Although a judge can wait until trial to make evidentiary rulings, many judges will try to identify and resolve troublesome issues before hand to ensure a smooth and fair trial. A common pretrial motion is a motion in limine; i.e., a motion that sets restrictions on how and whether a party can reference certain issues or evidence. A party that feels that certain evidence is overly prejudicial will usually make a pretrial motion in limine asking the court to bar the party from mentioning the prejudicial material.
3. Rule 26 Pretrial Disclosures
Each party is required to disclose the name, telephone number, and address of each witness the party may call at trial. Furthermore, each party is required to name the witnesses who are expected to present testimony through deposition and provide a copy of that deposition. Lastly, each party must present a copy of all exhibits—charts, summaries, and other exhibits used for demonstration—and must delineate which exhibits will be used and which exhibits might be used.
VIII. TRIAL
A. Jury Trial
If a case has not been settled and a jury trial has been requested and granted, a jury trial will be held. The number of jurors required depends on the type of case. In civil matters where the amount in controversy is $20,000 or more, eight jurors are required unless the parties agree otherwise.
1. Notice to potential jurors
Potential jurors are selected at random from driver’s license and voter registration lists. Notice is sent out to a certain number of potential jurors who are ordered to appear in court on certain day at a certain time.
2. Jury selection, Rule 47, URCP
Not every person who receives notice of selection as a potential juror will actually be selected as a juror. This is because certain people may have prejudices or connections to the case that would prevent them from trying the case fairly and neutrally. Consequently, both parties have an opportunity to inquire into a potential juror’s background in order to ascertain if that person will be a fair and just juror. If a juror’s answer to a question reveals an unacceptable bias towards or connection to the case, the Court will dismiss the juror. Both parties also have the opportunity to dismiss a limited number of jurors without cause. In this sense, “without cause” means that there is no legally justifiable reason for keeping the person off the trial, but the party feels that the person would otherwise be unlikely to grant a verdict in their favor and thus doesn’t want the person to sit on her trial. Once a jury has been selected, the case will proceed, starting with opening statements.
3. Opening statements
Typically, each party’s attorney will give an opening statement to the court. This statement will outline what the case is about, the party’s theory of the case, and the party’s thinks the evidence will show.
4. Presentation of evidence
Evidence is anything that tends to prove or disprove the existence of a disputed fact. It can be testimony, or documents, or objects, or photographs, or stipulations, or certain qualified opinions, or any combination of these things. Of course, if a judge orders that something not be received as evidence, a jury will not be able to consider it in reaching its verdict.
The plaintiff will offer its evidence first followed by the defendant. Each side may also offer rebuttal evidence after hearing the witnesses and seeing the exhibits offered by the other side. Some times the lawyers may agree that certain facts exist in trial or before, perhaps at the pretrial conference. A jury must accept any agreed or stipulated facts as having been proved. In limited instances, a judge may also take “judicial notice” of a well-known fact. In civil cases, a jury must accept judicially noticed facts as being true.
5. Motion for a directed verdict, Rule 50, URCP In civil cases, the person bringing suit—i.e., the plaintiff—has the burden of presenting evidence in furtherance of her claim. In other words, the plaintiff has the obligation to prove her claim rather than the defendant having the obligation to disprove her claim. In civil cases, the standard of proof is a preponderance of the evidence. This means that, after considering and comparing all the evidence presented in court, the convincing weight thereof must be in favor of the party making the claim. If the evidence is evenly balanced or if the balance is not in favor of the claimant, then the claimant has not met its burden as to that claim.
A plaintiff might move for a directed verdict if, after the plaintiff has presented all of her evidence, no reasonable juror could reach a verdict in the plaintiff’s favor. A directed verdict is where the court directs the jury to find in favor of the moving party, thus preventing the jury from deliberating and deciding the case. A directed verdict is usually granted only if the plaintiff has failed to present any evidence is in support of an element of their claim. For example, in order for a plaintiff to prevail in a negligence claim, she must prove that the defendant owed her a duty, that the defendant breached that duty, that the breach caused her harm, and that the harm resulted in damages. Thus, if a plaintiff failed to present any evidence that the alleged breach caused damages, the defendant would likely have a motion for directed verdict granted.
6. Jury instructions and objections
Before, after, and occasionally during the presentation of evidence, the court will give the jury instructions. As noted earlier, these instructions tell a jury concerning their duties and conduct, the elements and burden of proof for the claim, and the procedure the trial will follow. Attorneys can object to the form of a written instruction if they do so before it is given to the jury. See URCP 51.
7. Closing arguments
After all of the evidence has been presented the attorneys for the parties will have an opportunity to make closing arguments to the jury. Typically, lawyers use closing arguments to summarize and argue the case. They share their respective views of the evidence, how it relates to the law and how they think the jury should decide the case.
8. Jury Verdict
In order for a jury to reach a verdict in a civil case, only three fourths of the jurors (or more) need to be in agreement. This is different than a verdict in a criminal trial, which requires a unanimous decision.
B. Bench Trial
In some cases the right to a jury trial is not available or has been waived by the parties. When this happens, the judge will hear the case in a bench trial. In a bench trial, the judge assumes the jury’s role as a fact finder; i.e., the judge evaluates the evidence and issues a verdict. The procedure that is followed in a bench trial is much the same as in a jury trial. The attorneys will have an opportunity to give opening and closing statements and evidence will be presented.
There are, however, two differences of particular note. If, after a plaintiff has presented her evidence, the defendant feels that there has not been evidence presented as to a particular element of the claim, the defendant may make a motion to dismiss the claim. See URCP 41(b). This motion takes the place of motion for directed verdict, which is only applicable in jury trials. The second difference is that in a bench trial a judge is required to make findings of fact and conclusions of law when issuing her ruling. URCP 52. A finding of fact is a statement of what the evidence has shown. A conclusion of law is a statement of how the law applies to the facts.
IX. POST-TRIAL MOTIONS
Parties often feel that the judge or jury reached an incorrect verdict. Assuming that there is proper basis and it is timely made, a party can always appeal the verdict to the appellate court. However, there are also a number of post-trial motions a party can make in the court that tried the case (i.e., the trial court).
A. Motion for a new trial, Rule 59, URCP
Either party may make motion for a new trial, and the court may also order a new trial on its own initiative. However, in either case, the action must be taken within ten days after entry of judgment. A new trial can be granted for number of reasons, including:
• Irregularity of an element of the trial;
• Abuse of discretion;
• Accident or surprise;
• Jury Misconduct;
• Newly discovered evidence;
• Excessive or inadequate damages;
• Insufficiency of the evidence; and
• Error in law
B. Motion for judgment notwithstanding the verdict, Rule 50, URCP
A motion for judgment notwithstanding the verdict, as its name implies, asks the judge to enter a judgment in favor of the moving party despite an adverse jury verdict. The basis for this motion is the same as that for a directed verdict: the moving party is arguing that there was not sufficient evidence presented at trial regarding one of the elements of the cause of action. Motions for judgment notwithstanding the verdict must be brought within ten days after entry of judgment and can only be brought if the party also made a motion for a directed verdict during the trial.
C. Motion for relief from judgment, Rule 60, URCP A motion for relief from judgment asks the court to relieve a party from an adverse judgment. There are number of bases under which a court can grant such a motion, including:
• Mistake, inadvertence, surprise, or excusable neglect; • Newly discovered evidence;
• Fraud, misrepresentation, or other misconduct of an adverse party;
• Clerical mistake;
• The judgment has been satisfied, released, or discharged; • A prior judgment on which the present judgment is based has been reversed;
• It is no longer equitable that the judgment should have prospective application; and
• Any other reason justifying relief from the operation of the judgment.
All motions must be made within a reasonable amount of time, and for motions made for any of the first three bulleted reasons, that amount of time cannot be greater than after the judgment, order, or proceeding was entered or taken.
X. POST-JUDGMENT MATTERS
When a party receives a favorable pecuniary judgment, there are a number of ways the party can collect on that judgment. The process for collecting the judgment after trial is much the same as that discussed under default judgments supra II.D.
A. Motion and order in supplemental proceedings A court can order a party with an outstanding judgment to appear in a supplemental proceeding. The purpose of the proceeding is for the party to provide information that will aid in the collection of the judgment; e.g., the name of their employer, the nature and location of property they own, etc. An order to show cause, bench warrant, and garnishment can be ordered as set forth in supra II.D.
B. Execution and sale of defendant’s assets, Rule 64E, URCP After a final judgment has been entered in a matter, the prevailing party can, with permission of the court, seize and sell the property of the non-prevailing party in order to satisfy the judgment. The procedural path for accomplishing this is a writ of execution and is governed by Rule 64E.
XI. SPECIAL PROCEEDINGS
A. Prejudgment Writs in General, Rule 64A, URCP There are a number of prejudgment orders—i.e., orders a court can make before issuing its final ruling and order in a matter—, often called “writs,” that a court can issue. In general, all writs requires a showing that the property sought is not exempt from execution, that the writ is not being sought to hinder, delay, or defraud any of defendant’s creditors, and that there is a substantial likelihood that the person seeking the writ will prevail on the merits of the underlying claim. In addition to these general requirements, certain writs have certain requirements.
B. Writs of replevin, Rule 64B, URCP
A writ of replevin is a court order that requires a defendant to deliver specific personal property she is holding to the plaintiff. In order for the court to issue such an order, the plaintiff must show that she is entitled to possession of the property in question and that the defendant is wrongfully detaining the property. URCP 64A.
C. Attachment, Rule 64C, URCP
A prejudgment writ of attachment allows the plaintiff to seize the defendant’s property. A writ of attachment can be granted if the plaintiff shows: (1) that the defendant is indebted to the plaintiff; (2) that the action is based on a contract, or that the defendant is a foreign corporation or not a resident of Utah, or the writ of attachment is based on statute; and (3) that the payment of the claim has not been secured by a property lien in Utah.
D. Temporary Restraining Order (TRO), Rule 65A, URCP A TRO is a temporary court order that, if granted, would compel a party to do or refrain from doing certain acts. A TRO or preliminary injunction can be obtained if the applicant shows: (1) that the applicant would suffer irreparable harm without the order; (2) the threatened injury to the applicant would outweigh the damage caused by the proposed order; (3) the order would not be against public policy; and (4) there is a substantial likelihood that the applicant will prevail on the merits of the underlying claim. URCP 65(A)(e).
E. Preliminary injunctions, Rule 65A, URCP
When a TRO is obtained a preliminary injunction hearing must be set within 10 days in order to continue the injunction.